Verburgt v. Dorner

• Decision Date: 13 February 1998
• Docket Number: No. 96-1026,96-1026
• Citation: 959 S.W.2d 615
• Parties: 41 Tex. Sup. Ct. J. 138 John VERBURGT, individually and a/n/f of Thomas Verburgt, Timothy Verburgt and Joseph Verburgt, Petitioners, v. Patricia M. DORNER and the Methodist Mission Home, Respondents.
• Court: Texas Supreme Court

Page 615

959 S.W.2d 615

41 Tex. Sup. Ct. J. 138

John VERBURGT, individually and a/n/f of Thomas Verburgt Timothy Verburgt and Joseph Verburgt, Petitioners, v. Patricia M. DORNER and the Methodist Mission Home, Respondents.

No. 96-1026.

Supreme Court of Texas.

Argued April 24, 1997.

Decided Dec. 4, 1997.

Rehearing Overruled Feb. 13, 1998.

Jaay D. Neal, San Antonio, for Petitioners.

Edward C. Mainz, Jr., San Antonio, Laurence E. Best, Steven D. Naumann, Houston, for Respondents.

SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, HECHT and OWEN, Justices, join.

In this case, we decide whether the court of appeals erred in dismissing an appeal for want of jurisdiction. The appellant, John Verburgt, filed a cost bond on the thirty-fourth day after the trial court rendered judgment against him. Verburgt mistakenly believed that he had timely complied with Rule 41(a)(1) of the Rules of Appellate Procedure in filing the bond and did not concurrently move to extend the time to file under Rule 41(a)(2). ¹ We hold that a motion for extension of time is implied when a party, acting good faith, files a cost bond within the fifteen-day period in which Rule 41(a)(2) permits parties to file a motion to extend. We therefore reverse the judgment of the court of appeals and remand to that court.

Verburgt, in his individual capacity and as his children's next friend, sued Constance Clear, Patricia Dorner, and the Methodist Mission Home for intentional infliction of emotional distress and negligent interference with familial relationships. After Verburgt nonsuited Clear, the trial court granted summary judgment for the remaining defendants. The judgment was signed on October 10, 1995. Because no motion for new trial was filed, Verburgt's cost bond was due within thirty days, by November 9th. See TEX.R.APP. P. 41(a)(1). ² Verburgt did not file the bond until November 13th, nor did he file a motion to extend the time to file the bond within fifteen days of the bond's due date. See TEX.R.APP. P. 41(a)(2). ³

Several weeks later, the court of appeals ordered Verburgt to show cause why it should not dismiss his appeal for lack of jurisdiction. Verburgt's response demonstrated that his counsel had simply miscalculated the date the bond was due. See 928 S.W.2d 654, 655. Initially, the court of appeals decided to retain jurisdiction of Verburgt's appeal. But on rehearing en banc, the court reversed itself.

The court of appeals in this case recognized the "patent unfairness" of the result it reached:

We are, therefore, confronted with the question of whether the appellate rules condone a result that allows a litigant who knows he is late with his bond to save his appeal, but rejects the appeal of the litigant who erroneously, but in good faith, believes he has timely filed his bond and, thus satisfied, also believes he has no need to file for an extension of time.

Id. Although it acknowledged the arbitrariness of dismissal under these circumstances, the court of appeals nevertheless believed that the interest in finality of judgments outweighed the policy of disposing of appeals on their merits. Id. at 656.

In dismissing Verburgt's appeal, the appellate court also relied largely upon a decision by the Court of Criminal Appeals, Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996). But the Court of Criminal Appeals itself recognized in Olivo that its approach to the perfection of appeals in criminal cases has differed significantly from our more liberal approach. See id. at 524-25; compare Jones v. State, 796 S.W.2d 183, 186-87 (Tex.Crim.App.1990) (holding that Rule 83 of the Texas Rules of Appellate Procedure did not entitle appellant who filed defective notice of appeal to amend notice beyond the time allowed by Rule 41(a)(2) when the appellant had not requested an extension of time under Rule 41(b)(2)) with Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (holding that an appellate court may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error).

This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal. We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994); Grand Prairie Indep. Sch. Dist., 813 S.W.2d at 500. Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. ⁴ See Grand Prairie Indep. Sch. Dist., 813 S.W.2d at 500. Thus, we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993); see also Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-22 (Tex.1991); Gay v. City of Hillsboro, 545 S.W.2d 765, 766 (Tex.1977).

As the dissenting justice in the court of appeals pointed out, the result the court of appeals reached was not "absolutely necessary" under these facts. 928 S.W.2d at 657 (Duncan, J., dissenting) ("[T]he issue is not whether the rules condone a patently unfair result but whether they require it.") (emphasis in original). Here, the court of appeals acknowledged that Verburgt demonstrated that he had made a bona fide attempt to timely perfect an appeal. See id. at 655.

We hold that a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2). Our holding does not indefinitely extend the time in which parties may perfect an appeal, as Justice Enoch implies. Instead, once the period for granting a motion for extension of time under Rule 41(a)(2) has passed, a party can no longer invoke the appellate court's jurisdiction. It also does not alter the time for perfecting an appeal beyond the period authorized by Rule 41(a). Nor does our holding undermine finality of judgments, as the court of appeals believed. See 928 S.W.2d at 656. Parties who prevail in the trial court will still know within the time specified in Rule 41(a)(2) whether their opponents will seek to perfect an appeal. We decline to elevate form over substance, as the dissenters would.

Accordingly, we reverse the judgment of the court of appeals and remand to that court to allow it to determine whether Verburgt offered a reasonable explanation for his failure to timely file his bond. See TEX.R.APP. 41(a)(2). ⁵

ENOCH, Justice, joined by ABBOTT and HANKINSON, Justices, dissenting.

From today forward, one need no longer timely appeal to invoke an appellate court's jurisdiction. But just two months ago, this Court retained the longstanding rule that only a timely filed appeal invokes appellate jurisdiction. ¹ We insisted that to perfect appeal in a civil case, the notice of appeal must be filed within the time prescribed in the rules. See TEX.R.APP. P. 26.1. Further, we insisted that to extend the time in which to file the notice of appeal, one must file not only the notice of appeal, but in addition " a motion" that "must state: ... [among other things] the facts relied on to reasonably explain the need for an extension." TEX.R.APP. P. 26.3, 10.5(b)(1)(C). Like our new rules, the plain language of the rule that applies to this case, Rule 41(a)(2), mandates that the appeal be timely; consequently, it compels the result the court of appeals reached in this case. Is this a bad result? For the hopeful appellant, perhaps (assuming that the appeal is, in fact, meritorious). But denuding the Court's rules to achieve the Court's chosen result is bad law. I dissent.

Rule 41(a)(2) permits a party who fails to timely appeal to seek an extension of time. But to do so, the party has to file, within fifteen days of the original due date, both the cost bond and a motion for extension of time reasonably explaining the need for the extension. The majority's holding, that an "implicit motion" is filed if a would-be appellant files late and files only a cost bond, 959 S.W.2d at 615, simply ignores the rule's requirement that both instruments must be filed. Moreover, Rule 41(a)(2) gives the court of appeals discretion whether to allow an extension of time, but this discretion is triggered only by the filing of a motion reasonably explaining the need for the extension. In the absence of a motion, the court of appeals' discretion is never invoked and the late-filed cost bond has no effect. Here, Verburgt did not file a motion to extend time, and he did not file the cost bond timely. He simply did not do what Rule 41(a)(2) clearly requires.

The Court does not cite a single case holding that the untimely filing of an appeal can still be a bona fide attempt to invoke the court of appeals' jurisdiction. To the contrary, we have consistently and routinely held that the appeal must be filed timely. See Davies v. Massey, 561 S.W.2d 799, 801 (Tex.1978) ("Filing a cost bond ... is a necessary and jurisdictional step in perfecting an appeal."); Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 591, 291 S.W.2d 315, 318 (1956) ("It is well settled ... that the requirement that the bond be filed within thirty days is mandatory and jurisdictional."). Indeed, the court of appeals' decision in this case is predicated on this crucial point:

[W]hile the supreme court has liberally construed the rules...